Complainant by filing this complaint has submitted that op no.1 is the dealer of Hyundai car namely Concord Hyundai, Concord Hyundai Automotives Pvt. Ltd. and op no.2 is a Financer Company namely Kotak Mahindra Prime Ltd., Car Finance.  Complainant booked a car Hyundai VERNA 1.6 Ex-VGT, Color Carbon Gray, Model car of Hyundai make from the op no.1 on 13.08.2012 at a cost of Rs. 10,28,233/- and for that purpose he paid the booking amount of Rs. 4,47,719/- vide cheque No. 067485 dated 14.08.2012 drawn on ICICI Bank and after receipt of the said cheque, op no. 1 issued a receipt bearing No. 05339 dated 13.08.2012 which has been duly encahsed by the op no.1 and also issued order booking contact sheet bearing No. 0636 dated 13.08.2012 and op no.1 issued a proforma invoice dated 16.08.2012 to inform the complainant the name of financer, if any and accordingly complainant being a consumer agreed that at the time of booking the balance amount of Rs. 5,80,514/- as shown in the order booking contract sheet would be paid by the bank or financer for the vehicle on receipt of the said amount from the bank and op no.1 will deliver the vehicle to the complainant.

          Accordingly financer bank op no.2 entered into an agreement with the complainant on 29.08.2012 with certain terms and conditions for financing a vehicle loan and complainant accepted the same.  Thereafter op no.2 issued a released order vide Released Order No. CF/8346541 dated 29.08.2012 with all details that they issued a cheque/DD/pay order No. 0278556 amounting to Rs. 5,77,014/-  in favour of the Concord Automotives Pvt. Ltd. through RTGS for the car of Hyundai Model No. Verna CRDI which was booked by the complainant and for release of the car.

          No doubt complainant being a consumer booked a car loan from the Kotak Mahindra Prime Ltd. and no doubt op no.2 sanctioned letter dated 25.09.2012 in favour of the complainant for finance of an amount of Rs. 5,80,514/- along with details of loan copy i.e. tenure of 35 months and EMI of Rs. 19,486/- and in that agreement Schedule I with rate of interests and Schedule II cash flow details everything are noted in details.

          But most surprising factor is that even after receipt of the entire amount of the car including registration cost, insurance policy cost, etc. op no.1 unable to deliver the said car to the complainant and telephonic conversation started in between the complainant and the op nos. 1 & 2 and they requested the complainant to wait for some time and op no.1 shall invariably deliver the car but op failed to deliver the car to the complainant ultimately, though complainant cleared the entire amount of the car including other costs and in fact op no.1 has failed to discharge his liability as yet and they encashed the entire amount from complainant and also from financer. 

          But fact remains that complainant has been paying till now the EMIs and in the meantime op issued a cheque No. 059891 dated 19.09.2012 drawn on HDFC Bank Ltd. for an amount of Rs. 4,47,719/- in favour of the complainant with an encahsed on presentation of the same.  Complainant deposited the said cheque to the banker of the complainant the HDFC Bank, Stephen House Branch, Kolkata – 700001 within the validity period for encashment but the said cheque was returned dishonoured with remarks “Insufficient Fund in the Account” and the said information was received by the complainant through its Banker vide Debt Advice dated 24.09.2012 and thereafter visited to op no.1 and discussed about that but they did not take any action against such bounce of the cheque.  So, the complainant has been harassed by the ops and has suffered huge financial loss and still is paying EMI but the same has not yet been returned.  But the entire amount has not been returned to the complainant. Subsequently complainant sent demand letters to the ops but they did not respond.  So for the negligent and deficient manner of service and deceitful manner of service on the part of the op and deceitful manner of business of the op nos. 1 & 2, complainant has suffered much.  So, in the above circumstances, ops must have to refund the entire amount of Rs. 95,423/- to the complainant and for compensation, interest etc. for causing mental pain and agony and for litigation cost.

          On the other hand op no.1 Concord Automotives Pvt. Ltd. & Anr. by filing written statement submitted that the entire claim is false and fabricated and no doubt a sum of Rs. 4,47,719/- was paid by the complainant to the op no.1 for purchase of the Hyundai Verna Car but the money was paid as booking money for the said car but the model of the car as book by the complainant was not readily available and this fact was informed through telephonic conversation to the complainant and it was informed that it will take 2 or 3 months’ time for the said model not be ready for delivery and complainant agreed upon that and due to the above the complainant cancelled the booking and sought refund of the sum of Rs. 10,28,233/- to the complainant and such refund was in the month of January made by cash against money receipt signed by the complainant.

          Subsequently op no.1 faced certain financial difficulties as a result of which the winding up petition was filed by a creditor before the Hon’ble High Court at Calcutta by order dated 15.01.2013 the Hon’ble High Court was pleased to admit the winding up petition.  By a subsequent order dated 26.03.2013 the Hon’ble High Court was pleased to pass final order of winding up of op no.1.  The official Liquidator, High Court, Calcutta took actual physical possession of the assets, properties and books of accounts, documents of op no.1 and possession of the registered office of op no.1 was also taken.  The official Liquidator sealed the registered office and took away all records, books of accounts of op no.1.

          Op no.1 preferred an appeal before the Hon’ble Division Bench, High Court ay Calcutta against final order of winding up and in terms of the order dated 24.04.2013, Hon’ble Appeal Court payments are being regularly made by op no.1.  There is no fault of such payment till date and Hon’ble Division Bench was pleased to stay the winding up and direction was passed on the Official Liquidator, High Court, Calcutta to remove its padlock from the registered office and handed over back the same to op no.1.

          Subsequently, the Official Liquidator returned back possession of the registered office to op no.1, though possession was returned but books of accounts, documents and correspondence were not returned.  Upon persuasion by op no.1 some documents and papers were returned by the Official Liquidator but majority of them are still in the custody of the Official Liquidator.  The Official Liquidator is acting as a special officer of op no.1 in terms of the order dated 24.04.2013.

          In such a situation, all documents, correspondence and books of accounts relating to transactions are not in the possession of the op no.1 and op no.1 searched its records as available but the money receipt issued by the complainant upon taking refund of the sum of Rs. 10,28,233/- was not found in its records as such op no.1 is not possession of the money receipt and is not in a position to produce the same before this Forum and the situation is absolutely beyond the control of the answering ops and as because the entire money was refunded by the answering ops to the complainant.  So, there is no due to be paid by the op to the complainant and in this context, it is further mentioned that dishonoring of cheque issued by the op no.1, the money was returned by cash against issuance of money receipt and so complainant is not a consumer and further submitted that the present complaint is false, fabricated and without any material and further denied all allegations as made by the op and prays for dismissal of this case.

          Whereas op no.2 by filing written statement has submitted that the entire allegations in the complaint against the op are baseless and absolutely false and fact remains complainant has admitted that op no.2 paid loan amount to the op no.1 and requested to handover of the complainant.  So, there is/was no laches or deficiency on the part of the op no.2.  Further op no.2 has submitted that complainant approached the op no.2 for loan and accordingly op no.2 granted loan and delivery of vehicle is not the job of op no.2 and the reason against of which op no.1 has not delivered the vehicle to the complainant is unknown to op no.2 till receipt of the notice of the complainant.

          Moreover op no.2 has privity to contact with loan agreement not against any purchase item.  So, the claim made by the complainant against op no.2 is unjustified as no cause of action has arisen for deficiency of service in respect of complainant and op no.2.  So op no.2 has prayed for expunging his name and for dismissal of this complaint by denying all allegations as made by the complainant in his complaint and in fact op no.2 is not at all responsible in any conduct of the op no.1 and for any conduct or the complainant.

          So, under any circumstances, op no.2 cannot be penalized as op no.2 has no nexus with op no.1 and further there is no deficiency of service on the part of the op no.2 for which the complaint should be dismissed.

                                                       Decision with reasons

          On an in depth study of the complaint including written version of the op no.1 and also the op no.2, it is admitted position that complainant intended to purchase one vehicle from the op no.1 Concord Hyundai Automotives Pvt. Ltd. and for that purpose no doubt complainant as booking money deposited a sum of Rs. 4,47,719/- on 14.08.2012 and no doubt op issued receipt the cheque bearing No. 05339 dated 13.08.2012 and at the same time op also admittedly issued order booking contact sheet bearing No. 0636 dated 13.08.2012.  It is also undisputed fact that op no.2 sanctioned a loan amount in favour of the complainant for clearing the balance amount of the said vehicle and released Rs. 5,80,514/- in favour of the complainant for balance amount of the said vehicle and admitted position is that for getting such loan amount from the op no.2, complainant entered into an agreement with the op no.2 and op no.2 released that amount in favour of the op no.1 that is also undisputed fact.

          Truth is that complainant has been paying his monthly EMI regularly in favour of the op no.2.  But peculiar factor is that even after receipt of the entire amount by the op no.1 from the complainant and also his financer op no.2, op no.1 has not delivered the said vehicle as yet though complainant repeatedly asked the op no.1 to deliver the same.

          Admitted fact is that op no.1 admitted the fact as stated above but their defence is that they could not deliver the said vehicle in view of the fact the said model of the vehicle was not available.  But truth is that op no.1 has stated in his written version that they asked the complainant to wait for two or three months and after that it shall be delivered to the complainant but that was not delivered.  In the written version, there is no whisper though ever tried to deliver the said vehicle.

          Another factor is that op no.1 has stated in his written statement by adopting such defence that they already paid and refund the same of Rs. 10,28,233/- to the complainant in cash.  But their further defence is that those documents are in their custody as it is in the custody of the Official Liquidator but that is not true.  In view of the fact Hon’ble High Court had already vacated that order and op no.1 is now possessing and their office running their business etc. and another factor is that op no.1 has failed to produce any bank account to show that payment was already made.

          On the contrary it is proved that op no.1 failed to deliver the vehicle when they issued a cheque of Rs. 4,47,719/- being cheque No. 059891 dated 24.09.2012 but that cheque to clear first booking amount as paid by the complainant.  But that cheque was disnohoured for insufficient of fund that has not been denied by the op no.1.

          Most interesting factor is that this op no.1 in their written statement tried to convince that they paid Rs. 10,28,233/- is proved a false story and such a defence has been taken by the op no.1 only for dismissing the complaint.  But after considering the written version of the op no.1 and also the other materials, it is proved that the op no.1 by adopting unfair trade practice has taken huge amount from the complainant and also from the complainant through his financer and that amount has been invested by the op no.1 in their business and complainant did not get the vehicle. 

          Regarding cancellation of the said booking, it is found that cancellation was not made by the complainant.  On the contrary it is proved that before delivery of the said vehicle, op no.1 received the entire amount of the car that is Rs. 10,28,233/- but did not delivery the vehicle.  It is no doubt an unfair trade practice, deceitful manner of practice on the part of the op no.1.  It is equally true that op no.2 released the balance portion of the booking amount when complainant entered into agreement with the op no.2 but op no.2 did not wait for confirming about the release of the vehicle in favour of the complainant in a particular date.  So, it is clear that op no.2 without the consent of the complainant, delivered the said amount to the op no.1 and invariably there was some nexus in between the op nos. 1 & 2.

          Fact remains that loan was taken by complainant other than it must be disbursed by the op no.2 in favour of the complainant.  But when it is a car loan, it was the duty on the part of the op no.2 to confirm before releasing the said loan amount in favour of the op no.1 that the care is being delivered on the particular date and on the particular date the cheque can be released in favour of the complainant but that was not done by the op no.2 that is no doubt an unfair trade practice on the part of the op no.2 when complainant took the loan not the op no.1 and particularly loan was sanctioned against a vehicle and after delivery the said vehicle shall be hypothecated in favour of the op no.2.  But op no.2 has tried to show that it is not within their contract.  But from the contract, it is clear that loan was granted in respect of the vehicle and vehicle shall be hypothecated on payment.

          But peculiar factor is that the amount was released in favour of the op no. 1 and without ascertaining the date of delivery of the vehicle to the complainant by the op no.1.  So, such sort of activities on the part of the op no.2 is not doubt negligent and deficient manner of service and deceitful manner of business.

          Practically at the time of argument we have noticed that the Ld. Lawyer for the op no.1 ultimately surrendered before this Forum stating that the written version will speak the entire defence of the op no.1 and it is also found that ultimately Ld. Lawyer of the op failed to give satisfactory answer against queried made by this Forum regarding receipt in support of refund of money and Ld. Lawyer of the op no.1 directly admitted in respect of full payment by complainant there is no denial but op no.1 has taken a defence that he has already refunded the entire amount but that is not proved at all.

          But the Ld. Lawyer of the op no.1 submitted that many documents are in the custody of the Official Liquidator for which it is not produced but such a defence is completely false and fabricated and such type of defence of such company is not in the particular case.  But in so many cases against this company decree has been passed by this Forum and considering the conduct of the op no.1, it is clear that they have adopted unfair trade practice, deceitful manner of practice and in fact even after taking Rs. 10,28,233/- from the complainant giving assurance to deliver the said car did not deliver the vehicle and it is no doubt an unfair trade practice and for such an act of the op no.1 the complainant has been harassed by the op no.1 but also by the op no.2.  At the same time complainant has failed to enjoy the vehicle even after good payment of entire amount and considering that fact, it is clear that complainant suffered mental pain, agony including financial loss and in respect of that amount if the said amount was deposited in the bank, in that case, complainant shall have to get at least 10 percent interest over the said amount.

          In this case particular fact is admitted by the complainant that they issued a cheque in respect of refund of part amount but that was dishonoured.  It indicates that they swallowed the money but did not deliver the car.  They invested the money for their business, made profit but op no.1 did not deliver the vehicle but for non-delivery of the vehicle the amount has not been refunded.  But defence has been taken that they paid it.  Now they are telling before this Forum that those papers were deposited to Liquidator and the Liquidator failed to return the same but that is found a false story.  The present op no.1 has been running such business within the Kolkata adopting such unfair trade practice deceiving the customer in such a manner but none is here and there to check such practice of op no.1.

          So, such sort of op no.1 must be loosely handled by any Forum but proper and adequate action should be taken against such op no.1 for adopting such unfair trade practice and also for taking such sort of false and fabricated plea before this Forum knowing fully well that their defence shall be proved a lie before Court of law.  This desparate attitude of the op no.1 has given this Forum a chance to believe that no doubt the op no.1 has been running a dishonest business to deceive the customers in such a manner and considering all the above fact and circumstances, it is proved beyond any manner of doubt the allegations as made by the complainant against op no.1 and regarding release of loan amount in favour of the op no.1 by the op no.2 without the consent of complainant and without ascertaining the delivery of the vehicle by the op no.1 to complainant is no doubt a negligent and deficient manner of service and under any circumstances, the financer or bank cannot release the amount when loan is granted in favour of any customer and such amount cannot be refunded in the name of the car seller without ascertaining the delivery of the car by the seller to the customer like the present complainant, but that principle has not been followed by the present financer op no.2 for which the allegation against the op no.2 is also substantiated.

          Fact remains that for the laches and negligence and for adopting deceitful manner of business as adopted by the op nos. 1 & 2 and for not giving redressal by them to the complainant, complainant was forced to appear before this Forum and for which he has spent huge money for proceeding with the litigation and litigation was created not by the complainant but by the both ops.

          In view of the above findings, the complaint succeeds.

          Hence, it is

                                                                ORDERED

          That the complaint be and the same is allowed on contest against both the ops with cost and op no. 1 shall have to pay of Rs. 10,000/- and op no.2 shall have to pay cost of Rs. 5,000/- to the complainant.

          Op no.1 is directed to refund Rs. 10,28,233/- to the complainant within one month from the date of this order along with 12 percent interest per annum over the same after calculating the interest from the date of receipt of the said amount respectively and till full payment of the same.

          Op no.1 is also directed to pay a sum of Rs. 50,000/- as penal damages for adopting unfair trade practice and for adopting deceitful manner of service and to check their such sort of activities in the market and to save the consumers from the hands of such dishonest traders, this penal damages is imposed and it shall be deposited to this Forum by the op no.1 within one month from the date of this order.

          Op no.2 is also directed to pay a sum of Rs. 25,000/- as compensation to the complainant for causing damages, mental pain and sufferings and also for releasing the amount in favour of the op no.1 without the consent letter of the complainant and without ascertaining delivery of vehicle from the op no.1 to the complainant.

          Ops are directed to comply the order within one month from the date of this order and if ops fail to comply the order after completion of 30 days from the date of this order, in that case, op no. 1 shall have to pay penal interest  at the rate Rs. 300/- per day till full satisfaction of the decree and for non-compliance of the order op no.2 shall have to pay penal interest  at the rate Rs. 100/- per day till full satisfaction of the decree and if the amount is collected it shall be deposited to this Forum by the op nos. 1 & 2.

          Even if it is found that ops are found reluctant, in that case, further penalty and fine shall be imposed and further proceeding shall be started u/s 27 of C.P. Act 1986 for which both ops are liable for that.